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Essays on law, leadership, technology, and "things" - and arts, culture, intellectual property, and commons - and entrepreneurship and innovation - and higher education - and Pittsburgh and urbanism. One law professor's views of the world.Mon, 20 Jul 2015 16:57:51 +0000en-UShourly1http://wordpress.org/?v=4.2.3Designing Utopias, IP Law Editionhttp://madisonian.net/2015/07/20/designing-utopias-ip-law-edition/
http://madisonian.net/2015/07/20/designing-utopias-ip-law-edition/#commentsMon, 20 Jul 2015 16:57:51 +0000http://madisonian.net/?p=8043The apparent absence of artifice — one might say, the calculated absence of artifice — so dominates California’s cultural and natural landscape that when I return from a trip out West, as I just did, I have to spend a few days cognitively re-situating myself in the manufactured East. What that means is that I’m a … Continue reading Designing Utopias, IP Law Edition

]]>The apparent absence of artifice — one might say, the calculated absence of artifice — so dominates California’s cultural and natural landscape that when I return from a trip out West, as I just did, I have to spend a few days cognitively re-situating myself in the manufactured East.

What that means is that I’m a native Californian who has lived in Pittsburgh for a long time. Each occasional re-immersion in the land of my youth means re-assessing that place in light of my current experience. As part of “Code,” Lessig once distinguished “West Coast Code” (computer code — open, networked, bottom-up) from “East Coast Code” (legal code — closed, proprietary, top-down), noting that each “regulated” behavior, but in different ways. But I think that he (as a native Pennsylvanian) mis-read the Californian metaphor. California’s contribution to contemporary jurisprudence — to thinking about code, and openness, and to IP and tech and culture — cuts quite differently.

The leftmost edge of the US is about utopianism — just as so much of the US in general is dominated by utopianism — but utopianism of a very specific flavor, and utopianism unlike the utopianism of the contemporary East Coast.

East Coast utopianism is often about Being. In Pittsburgh, for example, Pittsburgh exceptionalism about who “we” (Pittsburghers) “are” (we’re amazing!) dominates all sorts of public conversations. And Pittsburgh and Pittsburghers are hardly alone among Eastern communities in their self-regard for their present (if sometimes unrecognized or unrewarded) greatness, but they are uncommon (and therefore an uncommonly good example) for the linkages among achievement, greatness, and place. Pittsburgh today is an interesting city, even occasionally cool or hip, precisely because it is so explicit and obvious about its interest in recapturing and then repurposing its 20th century glory. There is 21st century glory ahead, but — as in Boston, or New York, or even Cleveland — 21st century glory is about affirming and extending existing glory. We already occupy the promised land.

West Coast utopianism is about Becoming. Existing communities don’t make the point as clearly as new communities do (whether existing communities includes only big ones, like San Francisco or Los Angeles, or small ones, like San Luis Obispo); novelty, in fact, is the entire point. Few in California have achieved their utopian vision; utopia is by definition always a work in progress. We are designing utopias — entirely new places. We are headed *to* the promised land, or we are *building* the promised land. The New York Times just carried a couple of short pieces that, juxtaposed, make the point all too clearly. “Utopia Rules at Sea Ranch, a Community Born of ’60s Idealism,” about the Sea Ranch planned second-home community on the bluffs between Bodega Bay and Mendocino (my family was one of many that vacationed at Sea Ranch in the 1970s) appeared at the same time as “The Happiness Project,” about Disneyland. Behavioral rules and regulations at Disneyland are legendary, whether we’re thinking of customer behavior or staff behavior. That’s the utopian design. The idyll of Sea Ranch was/is no less scripted, architecturally and behaviorally.

West Coast “code” is, in other words, just as law-specific and regulatory in a traditional sense as East Coast “code” is. Apple and Google — West Coast code in Lessig’s sense — are Disney-ish, in a digital context. But they are forward-looking rather than backward-looking.

Walt Disney himself was, in a way, the Steve Jobs of an earlier, pre-digital era, a showboating aesthetic imperialist who had an instinct for producing extraordinarily inspiring and comforting cultural objects. (I visited the Walt Disney Family Museum in San Francisco, which is a great place and which reminded me constantly of the Disney/Jobs resemblance. I am farfrom the first person to noticeit.) Mickey Mouse was the totalizing cultural icon, the iPhone, of 80 years ago, a cheap entree to the E-ticket ride of the future. Up at Sea Ranch, the visioneer behind that project, Lawrence Halprin, played the same role. Sea Ranch represents the California natural sublime; Disneyland represents the California cultural sublime. Of course, they are the products of quite distinct utopian impulses; Fred Turner’s history “From Counterculture to Cybereculture” explains.

Does this all have anything to do with IP law? In a general, conceptual sense, I think so. IP policy in the US is understood to be guided by “progress,” a word and metaphor that comes from the US Constitution and that pays off in the copyright concept of “originality” and the patent concepts of “novelty” and “nonobviousness.” IP law speaks directly to collective interests in new stuff; new stuff makes us collectively better, in some way. But to what end? My Californian bias suggests that “progress” should be informed by a “Becoming” utopianism rather than a “Being” utopianism. (Which is hardly an uncomplicated resolution, to be sure.) Much IP debate and discussion today, it seems to me, is “Being” rather than “Becoming.”

]]>http://madisonian.net/2015/07/20/designing-utopias-ip-law-edition/feed/0Building a #Pittsburgh Narrativehttp://madisonian.net/2015/07/01/building-a-pittsburgh-narrative/
http://madisonian.net/2015/07/01/building-a-pittsburgh-narrative/#commentsWed, 01 Jul 2015 15:30:12 +0000http://madisonian.net/?p=8038Contrasting “Pittsburgh tech is booming!” stories with “the rest of Pittsburgh is struggling” is always interesting … because those sorts of comparisons are done so rarely. But the comparison tells us and others something important about the region. “Pittsburgh region’s low startup ranking a bitter pill for local stakeholders;Entrepreneurial activity here lags in national index,” … Continue reading Building a #Pittsburgh Narrative

]]>Contrasting “Pittsburgh tech is booming!” stories with “the rest of Pittsburgh is struggling” is always interesting … because those sorts of comparisons are done so rarely. But the comparison tells us and others something important about the region.

“With 20 years’ experience in funding Pittsburgh-based startups, I feel compelled to respond to your recent article on our region’s relatively poor performance in national startup rankings (“Region’s Low Startup Rank Startles,” June 4). Since founding Birchmere Ventures in 1996 to seek technology startup opportunities in the Pittsburgh metro area, we’ve expanded nationally, but we’re still based here, and we view this market as our most promising.

The Kauffman Foundation’s statistics indicating that Pittsburgh has the lowest rate of startup activity among the country’s 40 largest metro areas is disheartening on its face. But these numbers obscure rather than reveal what’s really happening. Kauffman’s overly broad definition of entrepreneurial activity conflates dry cleaners and landscapers with the comparatively small number of companies raising significant venture capital — those with the potential to transform a region’s economy.

The vast majority of Kauffman’s startups are small proprietorships that will never have more than nine employees. Lumping them in with companies striving to go public or to be acquired for hundreds of millions of dollars yields misleading results.

Looking backward 20 years and forward a few more, I see our region’s venture sector booming with world-class investment opportunities coming out of Carnegie Mellon, Pitt, Innovation Works and Alphalab. NoWait, Resumator, 4Moms, and Indentified Technologies are national leaders in their markets. These are the companies we should be tracking and celebrating – our region’s star companies aiming to change Pittsburgh, and change the world.

That last dig is a little unfair, of course, because Pittsburgh *does* need risk-based investing and more of it. There’s nothing wrong at all with the VC model, unless an investor (let alone a region) falls under its spell and fantasizes that venture investing and risks and rewards are actually the way to economic prosperity for an entire region. That’s not true here; it’s not even true in the Shangri-La of venture investing, Silicon Valley.

For a Silicon Valley illustration (one among many), drive through the southern end of Middlefield Road in Redwood City, which is just a couple of miles to the north of Menlo Park and a couple of miles northwest of Facebook’s headquarters. I’ll wait.

In other words, none of this should be an either/or issue, even if the way that development topics appear in the mass media make it appear so, and even if some folks in the development business — for understandable if self-regarding reasons — perpetuate the either/or idea.

In truth: The region can’t succeed unless the money circulates widely. The Post-Gazette, despite news and business coverage that is dwindling to the point of nonexistence, still excels at the sort of big-think-features that this theme cries out for. More of those, please?

On a similar point, a friend pointed me recently to the mini-non-hubbub that erupted about a month ago when it came to light that Uber, setting up a sizable research program in Pittsburgh, has hired a number of people away from Carnegie Mellon. I was out of town when all of this happened, but looking back it appears that the media was abuzz both locally and nationally. Uber-the-disruptor is/was disrupting yet another revered local institution! (Post-Gazette) (Pittsburgh Business Times) (WSJ) (Fortune)

Except, of course, nothing of the sort. As Audrey Russo wisely told the PG, this sort of thing (large investments in Pittsburgh by wealthy companies, lured by Pittsburgh’s two key assets: talent, and low costs) is exactly what the region has *wanted* for decades. Carnegie Mellon will be fine, even if in the short-term its National Robotics Engineering Center will have to re-balance its staff. Universities are used to competing for resources, especially universities like CMU, which like to play in the commercialization pool.

20,000 new residents for the City of Pittsburgh by 2025? Mayor Bill Peduto aims low, but that’s not the real problem in the newly-released “Welcoming Pittsburgh” plan. [Welcoming Pittsburgh plan here.] Still, I’ll start with that. According to Aesop, the mountain labored and brought forth a mouse. But like many recovering industrial cities, Pittsburgh may have to get used to hoping to meet low expectations. Over and over again.

Back when I was writing Pittsblog, immigration and what I called “population churn” were favorite and frequent topics on that blog, linking population turnover (not necessarily population growth) to economic development and diversification. Samples:

In other words: Everything old is new again. The Mayor’s Office and the Downtown Powers-That-Be have re-discovered something that lots of people who are better informed than I am have known for a long time: Whatever the future of Pittsburgh may bring, the people who live here right now will need a lot of help in bringing it about.

But the plan largely ignores the relevant economic picture, which is, to say the least, not rosy. “Pittsburgh’s tech economy may be on the rise, but the higher tide hasn’t been enough to lift the overall startup ecosystem. …
For the second year in a row, the region ranked dead last among the nation’s 40 largest metropolitan areas in terms of startup activity, according to the 2015 Kauffman Index. In addition, the city finished 39th in producing new entrepreneurs, with an average of 150 of every 100,000 adults taking the plunge every month compared to 550 per 100,000 in top-ranked Austin, Texas.” [Post-Gazette story, reporting on a new Kauffman Foundation report.] Local economic development organizations are disappointed that their efforts have not borne more fruit, but the data are entirely consistent with Pittsburgh’s long-standing low rates of new and small business formation. Don’t forget the continuing drumbeat of reports that emphasize the region’s continuing struggles with poverty.

New residents are most likely to move to places where they and their families can find jobs, start businesses, and otherwise build sustainable lives for themselves. [Link to Kauffman Foundation report on entrepreneurship rates among immigrants.] Yes, as the “Welcoming” plan points out, Pittsburgh can do many things to make new residents and immigrants feel welcome and participate in civic life. But the most important thing that it can do is provide them with meaningful economic opportunity. The plan doesn’t talk much about that.

I know: Talking about economic opportunity as directly as I’d like seems to run headlong into a core Pittsburgh socio-political imperative, which is that the community (broadly defined) can’t reach out to increase immigration numbers or improve the lives of the relatively few immigrants who live here unless the community simultaneously improves the lives of the people who are already here. There are plenty of people already living in Pittsburgh who need help. The Mayor’s Office, launching the outreach that led to the recent “Welcoming” plan, wrote: “As part of the Mayor’s vision to grow Pittsburgh’s population by 20,000 new residents over the next 10 years, and to do right by those currently living in the city, the Welcoming Pittsburgh Advisory Council has been working to draft a plan that will help make Pittsburgh more welcoming and to build a more livable city for all of its residents.” That’s politics, not policy. Which is not to deny the need that exists in Pittsburgh. But ignoring the fact that bringing in new people requires creating economic opportunity for them is a political form of cutting off one’s nose to spite one’s face.

Back to my initial point about the limited scale of the “Welcoming” plan. 20,000 new residents over 10 years? It’s conceivable that during that time the city and region will be pushed to build infrastructural resources (social, physical, economic) that will help the area transition soundly and economically into its next 75 years. But it’s more likely, I think, that 20,000 people will be such a drop in the population bucket that no one will be better off. The folks who drafted the “Welcoming” plan, and the Downtown Powers-That-Be, can pat themselves on the back for having said the right civic-minded thing.

I used to talk with Pittsburgh friends about the challenge of changing the collective psychology of an entire community. How could one imagine persuading Pittsburgh as a place to think differently about itself, as a way to getting Pittsburgh to accept the need to build a new future and then go about the task?

Even before I started Pittsblog back in 2004, I was curious about the disconnect between Pittsburgh’s amazing heritage, history, and collection of industrial, cultural, education, and financial resources — and its clearly stagnant economy. I was struck by the contrast between the hostility to the new that I found in such an incredibly textured place and the economic vibrancy of my native Silicon Valley, which has an obtuse disregard for history, culture, and community but which is relentless in its openness to novelty — new ideas, new people, new everything.

Over the life of Pittsblog, I eventually came to the conclusion that my interest in collective psychology led me to pose an impossible and wrong question. No one can get a city or region to think differently about itself; the people who live there think as they do for all sorts of historical, social, cultural, and economic reasons. And those things don’t change.

What does change are the identities of the people themselves. Hundreds of thousands of people, many of them Pittsburgh’s best and brightest, left the area during the 1980s. The people who stayed were committed to Pittsburgh (note the several meanings of “committed,” there). Should those people change their beliefs, their hopes, their commitments, and their attitudes — then, or now? I doubt it. Not only “should” they not, they literally cannot, not in any large numbers. Over time, some of them pass on, some of them leave. New people are born and raised here, they move in and out, and new people move in. They bring new attitudes and cultures with them. In Pittsburgh’s sexier, hipper neighborhoods today, in general you don’t see populations of current residents waking up and realizing that they were doing it wrong before. You see new people moving in and doing new things. Some long-time residents participate in that. The best of all of these groups blend the existing and the new – business, culture, building, civic practice. That’s how the psychology of a place changes. Like it or not, new people bring change with them.

The best thing about the new “Welcoming” plan is that in some indirect sense, it gets this point: The City needs to participate in change. If the City does a good job of that, it can contribute meaningfully to building a future for the region; otherwise, as we’ve learned to say, we get the passive “it is what it is.” The plan gets that change is cultural. And the plan gets that change both involves and requires bringing new people to the community. In deep and important ways, current residents are invested in the lives and neighborhoods that they’ve already built.

But — the deep “but” — when the plan focuses on welcome centers and making new residents feel as comfortable as existing ones, then building systems and infrastructures around those shared attitudes, the plan doesn’t have the courage of its own convictions. It’s possible to embrace the new, encourage the new, and manage the change that results when the commmunity reaches out in substantial ways to bring new people in. The full impact and benefit of that process can’t and won’t be realized if priority goes to making everyone feel culturally comfortable first.

Invest in economic opportunity. Build infrastructures to support that, and encourage, welcome, and accept current residents, the Disapora, immigrants, and all others who want to participate in it. People will most definitely come.

]]>http://madisonian.net/2015/06/24/pittsburgh-needs-bodies/feed/0Orphans Works and Fair Usehttp://madisonian.net/2015/06/19/orphans-works-and-fair-use/
http://madisonian.net/2015/06/19/orphans-works-and-fair-use/#commentsFri, 19 Jun 2015 15:46:43 +0000http://madisonian.net/?p=8025.@ARLPolicy @mmasnick and @klsmith4906 have already blogged and tweeted most of what should be said about the recent Report on Orphan Works from the U.S. Copyright Office. Like them, I’m particularly concerned about the critical tone that the Report adopts regarding fair use, not only with respect to orphan works in particular but with respect … Continue reading Orphans Works and Fair Use

Like them, I’m particularly concerned about the critical tone that the Report adopts regarding fair use, not only with respect to orphan works in particular but with respect to copyright generally. The myth persists that fair use is a bad and unhelpful doctrine, not only for profit-maximizing copyright owners (it is understandable that they would tend to spend out against fair use, though not all do) but also for society as a whole. Why does the U.S. Copyright Office take what appears to be a dim view of a doctrine that has such a sound historical pedigree and that plays such a fundamental role in the copyright system?

“[S]ocial and cultural patterns underlying case-by-case adjudication of fairuse problems may have achieved something that formal reliance on the fairuse statute has been unable to produce: a framework for analyzing fairuse problems that is both stable and relatively predictable in the context of legal doctrine, and that corresponds in a sensible way to the behavior of individuals and institutions governed by copyright law.”

]]>http://madisonian.net/2015/06/19/orphans-works-and-fair-use/feed/0Pittsburgh Has Bookstores, Stillhttp://madisonian.net/2015/06/18/pittsburgh-has-bookstores-still/
http://madisonian.net/2015/06/18/pittsburgh-has-bookstores-still/#commentsThu, 18 Jun 2015 15:09:51 +0000http://madisonian.net/?p=8020@NEXTPittsburgh recently published a nice roundup and review of the independent bookstores in the region that are standing proud for print as well as text. Pittsburgh isn’t as publicly bookish as say, Boston, but it’s nice to know that there are a few outlets left for those of us who like to browse in person … Continue reading Pittsburgh Has Bookstores, Still

]]>@NEXTPittsburgh recently published a nice roundup and review of the independent bookstores in the region that are standing proud for print as well as text. Pittsburgh isn’t as publicly bookish as say, Boston, but it’s nice to know that there are a few outlets left for those of us who like to browse in person as well as online.

]]>http://madisonian.net/2015/06/18/pittsburgh-has-bookstores-still/feed/0Abbott and Costello, Copyright, and Mehttp://madisonian.net/2015/06/16/abbott-and-costello-copyright-and-me/
http://madisonian.net/2015/06/16/abbott-and-costello-copyright-and-me/#commentsTue, 16 Jun 2015 16:16:30 +0000http://madisonian.net/?p=8013This report — “Abbott & Costello Heirs Sue Over Lifting of ‘Who’s on First’ Routine” by @HandtoGodBway — reminded me that many years ago, I borrowed the spirit of “Who’s on First?” for a short and silly piece about copyright law. The piece got published but never made its way to the unrarefied air of … Continue reading Abbott and Costello, Copyright, and Me

]]>This report — “Abbott & Costello Heirs Sue Over Lifting of ‘Who’s on First’ Routine” by @HandtoGodBway — reminded me that many years ago, I borrowed the spirit of “Who’s on First?” for a short and silly piece about copyright law. The piece got published but never made its way to the unrarefied air of the Internet. I’ve corrected that omission.

]]>http://madisonian.net/2015/06/16/abbott-and-costello-copyright-and-me/feed/0#Pittsburgh Contrastshttp://madisonian.net/2015/05/14/pittsburgh-contrasts/
http://madisonian.net/2015/05/14/pittsburgh-contrasts/#commentsThu, 14 May 2015 15:50:53 +0000http://madisonian.net/?p=8010The @pittsburghpg sometimes provides just the right amount of head-scratching source material. From one side of the newsroom, today’s paper brings the annual special report on business titled “In the Lead,” with a highly and appropriately celebratory series of stories about innovators and entrepreneurs in the Pittsburgh region. The section starts off with a short piece that … Continue reading #Pittsburgh Contrasts

But from the other side of the newsroom, apparently unaware of what’s happening in the “special reports” department, today’s paper brings what I think is grim economic news: “Pittsburgh is one of the least diverse places in the U.S., according to a new study of 200-plus cities that considered factors such as the types of jobs and industries as well as race and ethnicity.” Here is the report, from WalletHub. The authors of that report make it clear that they link diversity (across a lot of metrics) to economic prosperity in the 21st century. I did that, too, in a Pittsblog post (back in 2011, but I was hardly ahead of anyone’s time); if anyone cares to read the comments there, they’ll see that resistance to the diversity theme was strong.

Can Pittsburgh have it both ways? A risk-taking, entrepreneurial culture that is among the least diverse in the United States?

]]>http://madisonian.net/2015/05/14/pittsburgh-contrasts/feed/0#FutureLaw 2015 Thoughtshttp://madisonian.net/2015/04/30/futurelaw-2015-thoughts/
http://madisonian.net/2015/04/30/futurelaw-2015-thoughts/#commentsThu, 30 Apr 2015 14:41:24 +0000http://madisonian.net/?p=8006“Future Law 2015,” a conference “focusing on how technology is changing the landscape of the legal profession, the law itself, and how these changes impact us all” starts later today at Stanford Law School, organized by Stanford’s Center for Legal Informatics. “CodeX FutureLaw 2015 will bring together the academics, entrepreneurs, lawyers, investors, policy makers, and … Continue reading #FutureLaw 2015 Thoughts

]]>“Future Law 2015,” a conference “focusing on how technology is changing the landscape of the legal profession, the law itself, and how these changes impact us all” starts later today at Stanford Law School, organized by Stanford’s Center for Legal Informatics. “CodeX FutureLaw 2015 will bring together the academics, entrepreneurs, lawyers, investors, policy makers, and engineers spearheading the tech-driven transformation of our legal system.” The conference site is https://conferences.law.stanford.edu/futurelaw2015/

I’m not at the conference, but I know who is, for the most part, because the list of speakers is very much a “usual suspects” collection of the practitioners and tech gurus who are leading this particular revolution. I’ve been to other conferences of this sort. I’ve met lots of entrepreneurs, some practicing lawyers, and a few investors. These are really smart, really successful, and really ambitious people who are creating a particular future for law, lawyers, and legal systems, and who think that their vision will scale.

I know a number of these people (Katz, Chandler, Lippe), and as they likely know, I tend to think that they’re right, in broad terms, about legal tech and where the legal profession is headed, even while I’m not persuaded by the celebratory tone of some of the rhetoric (my paper on that is here). Legal tech is no panacea, and like many things that come out of Silicon Valley or are strongly associated with it, it can suffer from a human values deficit.

I’m puzzled, though, by what looks to me like a pretty glaring omission at the conference: law schools themselves. There are certainly a few law professors on the speakers’ list (Goodenough, Granat, Katz, Koenig, Knake, and Shadab, and Triantis is a moderator), but there are strikingly few faculty speakers who are tenure-stream or tenured research faculty in areas other than computational fields themselves. Where are the legal ethicists – just to name one omitted field? The torts teachers? The administrative lawyers? Where are the people who, like me, are neither computational folks nor legal techies nor clinical faculty? People who are full-time classroom teachers and who want to make our teaching relevant to the worlds in which our graduates will participate? Where is one key, real audience for this stuff — meaning, the next generation of lawyers, and those who are already training them?

The reason for the concern, other words, has to do with our students. “Legal tech” looks like it may turn out to be a great way to make money if you’re a tech entrepreneur or investor. For some classes of clients and others in need of legal information, legal tech may turn out to be a boon. But who’s going to run these systems? Who is going to staff them? Who will design them? Manage them? Guide their evolution? Figure out their normative implications and align them with relevant ethical expectations and guidelines?

Some number of these people, and perhaps a significant number of them, will come from the current generation of new law graduates and from the numbers of law graduates yet to come. But they and their interests are largely not in evidence. Not in the room. There’s no fault to assign; in what ways are law schools today incorporating the emergence of legal tech into their curricula? By which I mean, not law clinics or courses on legal tech, but legal tech as part and parcel of the world of the law across virtually every domain of practice? The answer is not “not at all,” but the answer is “very little.” Law schools are mostly as closed to this stuff as the legal tech world is closed to law schools.

Instead, the challenge is how to close an obvious mismatch between what legal tech sees as a solution (to information and services gaps) and value proposition, on the one hand, and what law schools are actually doing, on the other hand. Anyone who is even passingly familiar with academia knows that waiting for faculties to close this gap is, for the most part, pretty hopeless. If the practitioners of legal tech want to build a sustainable world and realize their hopes and dreams on behalf of the people they want to serve, then they need to consider broadening their own conversation.

]]>http://madisonian.net/2015/04/30/futurelaw-2015-thoughts/feed/0Deere Thingshttp://madisonian.net/2015/04/29/deere-things/
http://madisonian.net/2015/04/29/deere-things/#commentsWed, 29 Apr 2015 13:00:50 +0000http://madisonian.net/?p=8003This: “In a particularly spectacular display of corporate delusion, John Deere—the world’s largest agricultural machinery maker —told the Copyright Office that farmers don’t own their tractors. Because computer code snakes through the DNA of modern tractors, farmers receive ‘an implied license for the life of the vehicle to operate the vehicle.'” reminded me of this … Continue reading Deere Things

“In a particularly spectacular display of corporate delusion, John Deere—the world’s largest agricultural machinery maker —told the Copyright Office that farmers don’t own their tractors. Because computer code snakes through the DNA of modern tractors, farmers receive ‘an implied license for the life of the vehicle to operate the vehicle.'”

“The book is the paradigmatic thing in law and in culture. It exercises a unique authority, combining text and heft, concept and materiality. Taking things seriously means recognizing that authority in other material and conceptual forms, and searching for its sources. This is not Ahab’s pursuing the white whale, only to find it and be destroyed. This is appreciation and respect for new forms of authority, and understanding its sources and its limitations. My argument can be summed up in the following three steps.

First, the law does not go far enough to recognize that things are important. The conventional account holds that people are important, and what people do with things are important, but things are not. But that is not so. There are debates in a variety of places in the law about ‘things’—how to define them, classify them, and define their legal implications—but the debates are often seen as proxies for debates about relationships and interests and policies. What interests me is the sense that the debates may really, in fact, be about things. Things play important roles in our lives but are underappreciated in the law, by virtue of Realist and post-Realist jurisprudence and scholarship. The literal and figurative reconfigurability of the world teaches us to appreciate the role of things in creating and exercising authority in law. We know this when we consider high technology and particularly computer technology. “Code” regulates much as law does. But this is more generally true of things, and we should look for and understand regulation-by-thing in all areas of thingness, rather than focusing our energy exclusively or largely on the artifacts of computer science.

Second, the law does not appreciate sufficiently that things do not just exist. Things come from somewhere, and after they arrive they change, and the law has a meaningful role to play in constructing things and managing their evolution. Thingness in the law is not simply given. It does not fall neatly into traditional legal categories such as ‘property’ or ‘contract,’ or nonlegal categories such as ‘technology’ or ‘the market.’ The law creates and enforces thingness, and creates and enforces the authoritative character of thingness, and it does so in a variety of ways. Exposing that variety takes some effort, as it requires crossing disciplinary boundaries both in law and elsewhere. But if the results enable us more clearly to see the character of authority in our lives, and both the virtues and drawbacks of that authority, then the effort is worthwhile.

Third, bringing transparency to the processes of thing-making and thing-changing yields a wealth of possibilities in terms of both conventional and unconventional legal regulation. Once we see that there are several different ways in which things are made, we see the possibility of different alternative regulatory universes in which things are given and then regulated, or regulated in various ways during the process of their construction. The very notion of thingness suggests the existence of a dividing line between what is unregulable and regulable. Interposing the legal construction of thingness suggests that this line can be moved depending on regulatory interests. Critiques of thingness, and policy analyses of problems that concern things in any sense, can and should draw on the multiple senses of created thingness in developing both theoretical and practical arguments. The literature contains arguments addressing the choice between ‘law or code’ as regulatory substitutes, and arguments addressing ‘law and code’ as complements. By taking things apart, we see that the tools for appreciating and using (or rejecting) thingness in any regulatory context are far richer than one might initially suppose. The five models reviewed here represent only a rough taxonomy. As I note at several points, the models overlap with one another and in some areas blend together. For analytic purposes, they are useful starting points. Any policy-maker may pick and choose, accept or reject, all or parts of each model or some of them, hopefully taking account of their respective strengths and weaknesses in the context of the regulatory question at hand. Distinguishing the models suggests different kinds of questions to ask and highlights the merits of different answers.

A failure to appreciate the thingness of things undervalues the benefits of thing-based authority. Thingness can be a good thing. It also undervalues the benefits of challenging thingness. Things are authority, and authority is power. The insistence on thingness and the refusal to enable the disassembly of things may have important distributive consequences, not only in intellectual property domains, but elsewhere, even in the processes of democracy. If things are embodied culture, then they should be subjected to all of the pressures that keep cultures vibrant. We need to value them and re-create them, take them apart and improve them, preserve them and share them. Excessive deference to ‘nature’ or to ‘design,’ even if we challenge the identity and authority of the designers, does not do enough to assure that things themselves are part and parcel of the messiness of human existence. To focus too narrowly on producer interests, too narrowly on individual interests, or too abstractly on markets or on efficiency or ‘social welfare’ misses the inevitably human, and humanistic, character of the problem.

Modern materialism forces an integrated account of things that can and things that cannot be ‘physically and permanently’ possessed. We have a universe of malleable cultural forms, some of which descend from accepted antecedents, many of which can be modified by practice and by law. The question for things is a broader form of the narrow question raised by copyright and patent: what is the role of the law in preserving and shaping the forms that our “creative” institutions produce? That role is inevitable and essential. The answer cannot be found in critical or Realist arguments that the law must focus entirely on relationships and values in order to mitigate the concealed influence of power, or in economics arguments that the law should devise mechanisms so that the allocation of resources maximizes social welfare. There are contexts and methods for creating and legitimating thingness that do and should go unchallenged, so long as we fairly appreciate what they are. But abandonment of thing-based descriptions in favor of rights- and rules-based descriptions leaves us without a vocabulary adequate to capture actual human experience. Pragmatism cautions us to test propositions by their consequences in terms of human wants and needs rather than according to an ex ante ontology. The fluidity of things both conceptual and material challenges the pragmatist’s premise, since we can no longer take assurance from modern law’s relative distrust of the conceptual and trust of the material. The natural law tradition, which measures universal principles of truth and morality against ‘inherent characteristics in human beings and other animate things as well as in the physical word and in social structures,’ comes in for similar questioning. We cannot assume the truth of what is ‘inherent’ and what is manufactured. Adjudication, legislation, and scholarship should make the bases of thingness more transparent, so that the sources and weight of authority can be better evaluated, and so that the tools thus discovered can be put to more effective use.”

]]>http://madisonian.net/2015/04/29/deere-things/feed/0Pittsburgh as New Brooklynhttp://madisonian.net/2015/04/27/pittsburgh-as-new-brooklyn/
http://madisonian.net/2015/04/27/pittsburgh-as-new-brooklyn/#commentsMon, 27 Apr 2015 14:00:57 +0000http://madisonian.net/?p=8001Pittsburgh is again recognized as hip and trendy for a certain demographic: People looking for hip and trendy on the cheap. Once, the hip and trendy baseline was Portland. Today, it’s Brooklyn. http://brooklynbased.com/blog/2015/04/24/move-pittsburgh/ The money quote: “Size, it seems, is Pittsburgh’s double-edged sword. ‘We still need more humans,’ said Matthew Ciccone [The Beauty Shoppe]. ‘There are … Continue reading Pittsburgh as New Brooklyn

]]>Pittsburgh is again recognized as hip and trendy for a certain demographic: People looking for hip and trendy on the cheap. Once, the hip and trendy baseline was Portland. Today, it’s Brooklyn. http://brooklynbased.com/blog/2015/04/24/move-pittsburgh/

The money quote:

“Size, it seems, is Pittsburgh’s double-edged sword. ‘We still need more humans,’ said Matthew Ciccone [The Beauty Shoppe]. ‘There are not enough humans…The more people you have, the more vibrant a place can be.'”

The more humans you have, of course the more expensive a place gets. And the hip and trendy crowd will keep moving, looking for the next cheap thing.

The focus on hip and healthy food that seems to define Brooklyn is taking down a Pittsburgh institution: Del’s, in Bloomfield. Reports suggest that Del’s has problems beyond the fact that its style of Italian food isn’t as popular as it used to be, but I was struck nonetheless by this quote:

“‘I can’t keep up with the craft beers and infusion drinks,’ [Marianne DelPizzo] said. ‘And young people today, all they care about is healthy food and small portions. They’re trying all the new places. There’s no loyalty anymore.'”

I suspect that she meant to emphasize the decline in loyalty, but I noticed the passing reference to place. Pittsburgh is an extraordinarily place-oriented city and region, with its 90 city neighborhoods, forged into a steel-strong single identity, and its abundance of hill-and-valley-based communities. (I used to write about this at Pittsblog.) Newcomers, particularly non-natives, are unaware of this “place-ness” or, if they are aware of it, may be indifferent to it. One day Lawrenceville, the next day Troy Hill; Pittsburgh neighborhoods are breaking apart and renewing and remixing at a speed that is almost literally unimaginable to long-time residents. From the boosterism of Pittsburgh-as-New-Brooklyn to the laments of the owners of Del’s, you can almost feel the age-old fabric of the city being torn apart.

I’m reminded of Max Kellerman, the resort owner in Dirty Dancing, at the intro to the movie’s finale:

“It’s not the changes so much this time. It’s that it all seems to be ending. You think kids want to come with their parents and take fox-trot lessons? Trips to Europe, that’s what the kids want. Twenty-two countries in three days. It feels like it’s all slipping away.”

I’m also reminded of the music industry of about 15 years ago. For a time, any legacy integrated industry that was disrupted by technological forces of dis-integration was said to be “Napsterized.” Can a city can be “Napsterized”? Maybe that’s what’s happening in Pittsburgh.